metal bar in New York

2016In opposition, plaintiff failed to raise a triable issue of fact as to the size of the defect itself, or whether “its intrinsic characteristics or the surrounding circumstances magnified] the dangers it pose[d], so that it unreasonably imperil [ed] the safety of [plaintiff]” (Hutchinson, 26 NY3d at 78 [internal quotation marks omitted]).

2011The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]).

2006The deposition testimony of the plaintiff presented a triable issue of fact as to whether the metal bar was readily observable by the reasonable use of one’s senses and the plaintiffs alleged failure to observe it raises an issue as to her comparative negligence (see Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475, 477 [2004]; Cupo v Karfunkel, 1 AD3d 48, 53 [2003]; Tulovic v Chase Manhattan Bank, 309 AD2d 923, 924 [2003]).

2006The deposition testimony of the plaintiff presented a triable issue of fact as to whether the metal bar was readily observable by the reasonable use of one’s senses and the plaintiffs alleged failure to observe it raises an issue as to her comparative negligence (see Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475, 477 [2004]; Cupo v Karfunkel, 1 AD3d 48, 53 [2003]; Tulovic v Chase Manhattan Bank, 309 AD2d 923, 924 [2003]).

2006Therefore, Hoover’s renewed motion for summary judgment dismissing Costco’s third-party cause of action for contractual indemnification should have been denied without regard to the sufficiency of Costco’s opposition papers (see Morales v Transcare N.Y., 6 AD3d 588, 589 [2004]).

2006The deposition testimony of the plaintiff presented a triable issue of fact as to whether the metal bar was readily observable by the reasonable use of one’s senses and the plaintiffs alleged failure to observe it raises an issue as to her comparative negligence (see Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475, 477 [2004]; Cupo v Karfunkel, 1 AD3d 48, 53 [2003]; Tulovic v Chase Manhattan Bank, 309 AD2d 923, 924 [2003]).

2005We conclude that the metal bar is analogous to a “come along.” That device has been held to constitute one of the “other devices” within the meaning of the statute, which refers in part to “scaffolding, hoists, stays . . . and other devices” (see Koumianos v State of New York, 141 AD2d 189, 191 [1988]).

2005We conclude that the metal bar is analogous to a “come along.” That device has been held to constitute one of the “other devices” within the meaning of the statute, which refers in part to “scaffolding, hoists, stays . . . and other devices” (see Koumianos v State of New York, 141 AD2d 189, 191 [1988]).

2005Also contrary to defendant’s contention, at the time of his accident plaintiff was standing on the metal bar more than three feet above the scaffold’s platform, and thus “his work entailed a ‘significant risk inherent in the particular task because of the relative elevation at which the task [had to] be performed’ ” (Norton v John P. Bell & Sons, 237 AD2d 928, 929 [1997]).

2005Also contrary to defendant’s contention, at the time of his accident plaintiff was standing on the metal bar more than three feet above the scaffold’s platform, and thus “his work entailed a ‘significant risk inherent in the particular task because of the relative elevation at which the task [had to] be performed’ ” (Norton v John P. Bell & Sons, 237 AD2d 928, 929 [1997]).

2005Indeed, we note that “[t]he sufficiency of an elevation differential and fall from a height for purposes of Labor Law § 240 (1) liability cannot ... he reduced to a numerical bright-line test or automatic minimum/maximum quantification” (Amo v Little Rapids Corp., 301 AD2d 698, 701 [2003], appeals dismissed and lv dismissed and denied 100 NY2d 531 [2003], appeals dismissed and lv dismissed 1 NY3d 556, appeal dismissed and lv dismissed 1 NY3d 557 [2003], appeal dismissed 1 NY3d 558 [2003]).

2005In Koumianos , the record established that the “come along was utilized to tighten cables intended to support the scaffolding . . . [and thus] may properly be deemed a ‘functionally similar or related device’ within the statutory coverage” (id.; see Simon v Schenectady N. Congregation of Jehovah’s Witnesses, 132 AD2d 313, 316 [1987]).